One of the manifestations
of the government's insecurity in relation to voices of dissent has been the
increasing surveillance over citizens' mail and telephones. A vigilant section
of the press has exposed the facts of the infringement and erosion of liberty.
The Bangalore edition of the Indian Express published on June 6, 1981, a photocopy
of an order seeking interception of a citizen's mail in Shimoga Districtt. Indian
Today in a series of investigative stories thereafter published lists of citizen
whose mail was being intercepted in Delhi.

Jagmohan, when he was Lt.
Governor of Delhi, had in fact recommended the interception of mail and telephonic
communications of political opponents of the present regime. This was resisted
by the Secretary (Law and Judicial) of Delhi Administration, who questioned
the legal validity of such a move. The Law Secretary was immediately transferred
and a more pliant bureaucrat was brought in who gave a "favourable opinion"
to the move.

In November 1980, mail interception
in Delhi covered 172 persons including 12 MPs. The present Lt. Governor, S.
L. Khurana, expanded the list to 312 persons including 26 MPs. In such an action
valid? The earlier order of Jagmohan was extended for another six months. Though
the original list of 172 persons who extended to 312, no special reason was
given, in the case of the additional 140 persons now included as to why their
mail should be intercepted.

The provisions of Section
5(2) of the Indian Telegraphic Act and hose of Section 26 (1) of the Indian
Post Offices Act empower the Centre or State Governments to intercept telegraphic
and postal communications on the occurrence of public emergency, or in the interest
of public safety. The two acts were enacted in 1883 and 1898 respectively. But
even these draconian laws, allow interception only in the event of a public
emergency or when necessitated, in the interest of public safety. The activities
of persons so affected must have a direct relationship to such a public emergency
or public safety. Detailed reasons have to be specified. It is clear that in
the case of the 140 persons, even these stipulations were discarded. No reasons
were given. There was just a simple statement that the order of mail interception
passed earlier was being extended to 312 persons. In fact, or there was no initial
orders for the 140 persons, there is obviously no question of any valid extension.

The list has now been exposed.
It indicates the gross misuse of the provisions of the law. Among others, it
covers advocates, journalists, political workers, judges and government officials.
Obviously, the activities of these listed could have no nexus either in the
context of "public emergency" or in relation to "public safety".

In response to these violations, the PUCL presented a petition to both houses
of parliament on March 28, 1982 demanding the repeal of these draconian provisions.
Carrying placards and banners protesting against this erosion of a citizen's
liberty and privacy, PUCL members marched to the Boat Club Lawns in New Delhi
where a protest rally was organised. Bhai Mahavir, Surendra Mohan and Inder
Mohan were amongst those who addressed the rally.

These legislations were
enacted to suit colonial interests. Since then administrative law has undergone
a change. Legally, an order affecting the liberty of a citizen could not be
passed without ensuring a hearing and the subsequent process of natural justice.
This process has to be "just", "fair" and "reasonable".
Not only does Section 5 of the Telegraphic Act and Section 26 of the Post Office
Act, not meet the test of a just, fair and reasonable process, it also does
not define what "public emergency" or "public safety" means.

The "public emergency"
envisaged in these Acts differs from the emergency envisaged in Article 352
of the Constitution, which stipulates preconditions of either a threat of external
aggression or internal disturbances. The Cabinet must then confer with the President
who would sign the proclamation. The proclamation has to be ratified subsequently
by Parliament. It is only after the declaration of emergency that a Presidential
notification under Article 359 can suspend fundamental rights.

The Janata Government introduced
the 44th Amendment which made Article 21 non-suspendable. However, under the
Post Office Act and the Telegraphic Act, the liberty of a citizen which is now
protected during an emergency, can be eroded by the officer empowered by a state
or the Central government under these Acts. A certificate from the concerned
officer is conclusive proof. There are no guidelines for the declaration of
this "public emergency" and the power of the officer is unguarded
and completely arbitrary.

The Acts clearly violate
Article 21 (as they impose an unfair procedure of depriving a citizen's liberty),
Article 14 (as they give arbitrary and unbridled authority which is liable to
be misused) and Article 19(1) (a) (since they constitute an unreasonable restriction
on a citizen's expression). Another crucial question is the right of privacy
under the Indian laws.

Speaking for the majority
in Kharak Singh Vs. State of U.P. (A.I.R.1963 SC. 1295) Justice Ayyangar said,
"As already pointed out, the right of privacy is not a guaranteed right
under our constitution and therefore the attempt to ascertain the movements
of an individual which is merely a manner in which his privacy is invaded, is
not an infringement of a fundamental right guaranteed by Part III."

However, Justices Subba
Rao and Shah speaking for the minority in Kharak Singh's case said, "Further,
the right to personal liberty takes in not only a right to be free from restrictions
places on his movements, but also free from encroachments on his private life.
It is a fact that the Constitution does not expressly declare the right of privacy
as a fundamental right, but this right is an essential ingredient of personal
liberty. Every democratic country sanctifies domestic life, it is expected to
give him rest, physical happiness, peace of mind and security. In the last resort,
a person's house, where he lives with his family, in his castle, it is his rampart
against encroachment on his personal liberty."

The Court, however, struck
down surveillance by domiciliary visits (raiding the house at night) as violative
of Article 19 (1) (d).

The Supreme Court again
went into the question of a right of privacy in Govind Vs. state of M.P. (AIR
1975 SC 1378). The Court speaking through Justice Mathew held, "The right
of privacy in any event will necessarily have to go through a process of case-by-case
development. Therefore, assuming that the right to personal liberty, the right
to move freely throughout the territory of India and freedom of speech create
an independent right of privacy which one can characterise as a fundamental
right, we do not think that the right is absolute".

The Supreme Court further
held in 'Francis Mullain vs. Union Territory of Delhi' (AIR 1981 SC 746) that
the right of privacy includes the right to live with personal dignity. The right
of life is not merely the converse of animal existence.

These precedents in Indian
jurisprudence clearly indicate that the right of life and personal liberty has
been greatly expanded. After the liberal interpretation to liberty in Maneka
Gandhi's case, there is little doubt that ears-dropping telephonic communications
or interception of mail adversely affect the right of privacy and personal dignity.